Opinion
11-P-1059
05-11-2012
JOSHUA CURTIS v. CLAUDIA DALRYMPLE.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an action for a declaratory judgment of property ownership, injunctive relief, and damages for trespass, together with counterclaims for undue influence, breach of contract, and unjust enrichment, later consolidated with related contempt proceedings. After a jury-waived trial, the judge entered judgment for the plaintiff declaring him to be the sole owner of the disputed property, and awarding one dollar in nominal damages and $1,125 on the contempt complaint. The claim for injunctive relief was dismissed as moot. Both parties appealed.
Factual and procedural background. In a comprehensive and thorough nineteen-page opinion, the trial judge found the following facts. Claudia Dalrymple sold her home (home or property), in which both she and Joshua Curtis, her grandson, had been living for several years, to Curtis at below market rates. She claimed that she had agreed to such a sale based on Curtis's promise that she could continue to live there for as long as she liked. Although Curtis and Dalrymple had discussed formalizing this arrangement by granting Dalrymple a life estate, the deed the parties signed at closing and subsequently recorded did not include one. Shortly after the closing, Curtis's girlfriend Mary, later his financée, moved into the home with him. The relationship between Mary and Dalrymple rapidly deteriorated, until Dalrymple awoke Curtis and Mary late one night and told them that she and Mary could not live in the house together. Curtis and Mary moved out soon after. Dalrymple occupied the house for several more months, and Curtis sought a preliminary injunction ordering her to vacate. On June 18, 2010, a judge of the Superior Court (not the trial judge) denied the preliminary injunction but ordered Dalrymple to pay Curtis $1,500 per month toward his carrying costs of the property. Dalrymple did not make any payments, and moved out of the house shortly thereafter.
The purchase price of the property was $323,900. This included a gift of equity from Dalrymple to Curtis of $64,780, and a closing credit of $9,100. These adjustments resulted in an effective sale price of $250,000. The property was assessed at $485,000.
A pseudonym.
Curtis subsequently brought an action against Dalrymple, seeking a declaratory judgment that he was the sole owner of the property, and seeking injunctive relief and damages for her alleged trespass based on her occupancy. Dalrymple filed counterclaims in which she asserted that Curtis breached his promise that she could remain in the house for her lifetime, on which she relied to her detriment; that Curtis has been unjustly enriched, since the breach of his promise to allow her to stay amounts to a failure of consideration for her sale of the property and a windfall for him; and finally that Curtis obtained his title to the property through undue influence. Dalrymple appeals from the trial judge's ruling that Curtis did not have a fiduciary or confidential relationship with her when he purchased the home, and that Dalrymple breached their agreement by making it impossible for them to continue to live there together. She also challenges the calculation of damages on contempt. Curtis cross-appeals from the judge's ruling granting him only nominal damages for Dalrymple's trespass and from the award of damages on contempt. He also seeks attorney's fees for the contempt proceedings.
Discussion. 1. Dalrymple's appeal. Dalrymple argues that Curtis exercised undue influence over her within the context of a fiduciary, or at least a confidential, relationship at the time she sold her home to him at below market rates in exchange for the promise of lifetime occupancy.
'Undue influence involves some form of compulsion which coerces a person into doing something the person does not want to do. Four considerations are usually present in such a case.' Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 464 (1997). A party bringing a claim of undue influence must show 'that an (1) unnatural disposition has been made (2) by a person susceptible to undue influence to the advantage of someone (3) with an opportunity to exercise undue influence and (4) who in fact has used that opportunity to procure the contested disposition through improper means.' Ibid. Although the party alleging undue influence in a transaction has the burden of proof, a fiduciary or confidential relationship between the transacting parties can shift that burden or reduce it. Cleary v. Cleary, 427 Mass. 286, 290 n.2, 295, 296 (1998) ('One in a confidential relationship does not bear . . . as heavy a burden as a fiduciary. . . . [A] fiduciary who benefits . . . bears the burden of establishing that the transaction did not violate his obligations').
Whether a fiduciary relationship exists 'is a mixed question of law and fact for which the party asserting the relationship bears the burden.' Doe v. Harbor Schs., Inc., 446 Mass. 245, 252 (2006). The fact that the relationship between the two parties is, as here, a familial one does not in and of itself establish a fiduciary or confidential relationship. Nor does it alter which party bears the burden of proof in the absence of such a fiduciary or confidential relationship. Cleary v. Cleary, 427 Mass. at 293-294.
On review, a judge's findings of fact 'are accepted unless they are clearly erroneous. . . . We review the judge's legal conclusions de novo.' T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass. 562, 569 (2010). Here, the judge found that Curtis and Dalrymple had discussed the sale of the home to Curtis, and had agreed that Dalrymple would be free to remain in the home during her lifetime. She also found that Dalrymple 'decided to forego the life estate [in the deed] because she . . . understood that [Curtis] would permit her to remain in the home for as long as she wanted if that was her choice.' The judge also made detailed and careful findings that at the time of sale, Dalrymple was 'healthy, had no cognitive deficits, lived and functioned independently, and regularly made independent decisions.' She did not rely on Curtis for financial advice, and she was represented by and had the advice of counsel, choosing to proceed without counsel at the closing. The judge concluded that these facts did not warrant a finding of either a fiduciary or confidential relationship, which would shift the burden of proof on undue influence to Curtis, or a finding that Dalrymple was susceptible to undue influence, even assuming arguendo that a confidential relationship existed. See, e.g., Comstock v. Livingston, 210 Mass. 581, 584 (1912) ('Mere respect for the judgment of another or trust in his character is not enough to constitute [a confidential] relation'). Compare Estate of Moretti, 69 Mass. App. Ct. 642, 654-659 (2007) (finding evidence of possibility of undue influence and fiduciary relationship where one party handled all of the other's financial affairs, had power of attorney, controlled his access to information, and prevented others from seeing or speaking to him).
The judge's factual findings and conclusions of law regarding the claims of fiduciary or confidential relationship are ultimately dispositive of the remaining claims of unjust enrichment and promissory estoppel/breach of contract. ''A person who has been unjustly enriched at the expense of another is required to make restitution to the other.' Restatement of Restitution, § 1 (1937).' Mike Glynn & Co. v. Hy-Brasil Restaurants, Inc., 75 Mass. App. Ct. 322, 326 (2009), quoting from Salamon v. Terra, 394 Mass. 857, 859 (1985). However, 'the word 'unjustly' remains to be defined or explained.' National Shawmut Bank of Boston v. Fidelity Mut. Life Ins. Co., 318 Mass. 142, 146 (1945). Unjust enrichment may be found where property has been acquired by fraud, mistake, or breach of duty, Foster v. Hurley, 444 Mass. 157, 167 (2005), or where money is paid due to a mistake of fact. National Shawmut Bank of Boston v. Fidelity Mut. Life Ins. Co., 318 Mass. at 146. The cases cited by Dalrymple in support of her argument are distinguishable because they involve fraud, theft, embezzlement, a confidential or fiduciary relationship, or some other claim or factual context materially different from the present case.
Here, the judge found no fraud, no fiduciary or confidential relationship, and no breach of a promise. The judge's factual findings that it was Dalrymple's actions that made it impossible for Curtis to continue to fulfill his promise to her are fatal to the unjust enrichment claim.
Promissory estoppel is 'implicated when a promise was intended to induce the reactions it elicited, and when injustice can be avoided only by enforcement of the promise.' Northrup v. Brigham, 63 Mass. App. Ct. 362, 369 (2005) (citation omitted). The judge concluded that although both parties did intend to live together after the sale of the property for as long as Dalrymple chose to remain, and that 'that understanding was implicit at the time of the closing,' see Ranicar v. Goodwin, 326 Mass. 710, 713 (1951), Dalrymple's repeated displays of animosity to Mary, her declaration that she could not reside under the same roof with Mary, and her decision to change the locks and seek a restraining order preventing Curtis from coming near the property, frustrated the parties' mutual intent and made it impossible for Curtis to live with Dalrymple. Thereafter, Dalrymple moved out, a decision which the judge also found was her choice. The judge found that Dalrymple effectively prevented Curtis from residing in his own home. That finding established a material breach of any implied contract and precluded her from recovering for any alleged breach on the part of Curtis. Ward v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-101 (1983) ('It is well established that a material breach by one party excuses the other party from further performance under the contract'). The judge considered each of the causes of action, applied the correct legal standards, and made factual findings that were supported by the record and which were based, in large part, on assessments of credibility and demeanor, which are uniquely the province of the trial judge. We will not disturb them.
The judge also assumed without deciding that even had the parties' agreement to live together created a binding contract not subject to the Statute of Frauds, Hickey v. Green, 14 Mass. App. Ct. 671, 673 (1982), Dalrymple's conduct would preclude her from recovering from any alleged breach by Curtis. Robitaille v. Robitaille, 34 Mass. App. Ct. 947 (1993), is not to the contrary. The promise the court enforced in that case was to provide the father 'with a home within their new residence' in the event the son and his wife moved. Id. at 947-948. There is no such additional promise here.
2. Curtis's cross-appeals. Curtis argues that Dalrymple owes him damages for trespass in the amount of fair rental value for the property from the time when he informed her she was no longer permitted to live there until the time she was ordered to pay a monthly amount toward his costs. The judge found that there had been a trespass, Brice Estates, Inc. v. Smith, 76 Mass. App. Ct. 394, 396 n.3 (2010), but awarded no damages. Curtis cites Fenton v. Quaboag Country Club, Inc., 353 Mass. 534, 539 (1968), in support of his assertion that the judge should have used rental value as a measure of damages for a continuing trespass. The judge properly declined to award damages because there was no evidence in the record as to the rental value of the home. The $1,500 per month assessment issued by a different judge on the motion for a preliminary injunction reflected that judge's calculation of Curtis's carrying costs, not rent, and the trial judge was not obligated to accept this figure as the fair rental value.
The trial judge also found that Curtis did not offer proof of special damages. This claim has not been pressed on appeal, and is therefore waived. See Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 769 n.9 (1996) ('The various other claims which the plaintiffs stated in their amended complaint, but have not raised on appeal, are deemed waived').
3. Contempt damages. The judge found that Dalrymple moved out of the property 'no later than July 1, 2010.' The judge also found Dalrymple 'in contempt of . . . [the] June 18, 2010 order for her failure to pay rent for her occupancy of the property from June 18, 2010 through July 1, 2010,' and ordered Dalrymple to pay $1,125 for the 'the value [of that] occupancy.' The judge did not explain how she reached that figure. Accepting the judge's dates, we calculate the damages as follows: $50 (the daily rate based on a monthly rate of $1,500) multiplied by fourteen days, resulting in a total of $700 payable to Curtis.
Although Dalrymple raises this issue for the first time in her reply brief, we review it in the exercise of our discretion. See Mass.R.A.P. 2, 365 Mass. 845 (1974).
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4. Attorney's fees. While it is true that in civil contempt actions attorney's fees may be awarded as an element of the cost of enforcing the order of the court, Manchester v. Department of Envtl. Quality Engr., 381 Mass. 208, 215-216 (1980), there is no suggestion in either Curtis's appellate brief or in the record provided to us on appeal that he requested attorney's fees below, nor is there any citation to authority for the proposition that the judge should have awarded them, or explained the failure to do so. We therefore decline to remand for a determination of fees where the trial judge did not award them. See Adams v. Adams, 459 Mass. 361, 392 (2011) (argument made without citation to the record or to controlling authority does not rise to the level of appellate argument); Whelan v. Division of Med. Assistance, 44 Mass. App. Ct. 663, 668-669 (1998) (declining to consider a request for fees made for the first time on appeal).
The judgment is modified to replace $1,125 with $700 as the amount of damages on Curtis's complaint for contempt, and as so modified, the judgment is affirmed.
By the Court (Sikora, Carhart & Sullivan, JJ.),